Shepard v. Madigan

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ISRA On Today’s 7th Circuit Win

December 11, 2012 by 3 Comments

The Illinois State Rifle Association welcomed the ruling by Judge Posner in the joint appeal of Moore v. Madigan and Shepard v. Madigan today. However, they recognize that with the focus shifting to the Illinois General Assembly, it is time to get to work so that a sham carry law isn’t shoved through the legislature by the anti-gun, anti-carry forces.

From ISRA’s Urgent Alert sent earlier this afternoon:

7TH CIRCUIT COURT OF APPEALS DIRECTS ILLINOIS GENERAL ASSEMBLY TO PASS CONCEALED CARRY BILL

BOTTOM LINE UP FRONT:

The 7th Circuit Court of Appeals has rendered a decision in the Shepard/Moore v. Madigan case that states that Illinois’ ban on concealed carry is unconstitutional. The court further directs the legislature to pass a concealed carry bill within 180 days. Although the announcement of this court ruling would appear to be good news for self-defense advocates, it is really nothing more than the first volley in what will be a heated battle to preserve and protect our gun rights. The gun control movement, headed by Illinois Attorney General Lisa Madigan, will be introducing a concealed carry bill of their own for the sole purpose of satisfying the court order. Madigan’s bill is sure to be a sham that will be so restrictive and impractical that only very few Illinois citizens would even qualify for a carry permit – most citizens would remain unprotected from criminals. Information obtained from within the Madigan organization indicates that the anti-gunners will piggyback an “assault weapons” ban and other onerous gun control legislation on the concealed carry bill. In order to prevent Madigan from hijacking concealed carry, Illinois gun owners need to step up and let their voices be heard on this issue.

HERE IS WHAT YOU NEED TO DO TO GET A GOOD CONCEALED CARRY BILL PASSED:

1. Contact your State Representative and State Senator. Politely advise them that you are a law-abiding firearm owner and that you support the court of appeals decision in the Shepard case. Politely advise them that you want them to vote against any sham concealed carry bill that Lisa Madigan will try to push. Politely tell them that you want them to vote for HB 148, the Family and Personal Protection Act. Advise them that you will not support any concealed carry bill that contains provisions that would discourage the average citizen from seeking a carry permit such as exorbitant fees, impossible training requirements, or excessive red tape. Advise them that you will only support a “clean” concealed carry bill that does not try to sneak through gun control schemes. If you do not know who your State Representative and/or State Senator is, please visit the Illinois State Board of Elections website link here.

2. Pass this alert along to your family and friends. Encourage them to contact their representatives as well.

3. Post this alert to any and all internet blogs or bulletin boards to which you may belong.

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Oral Arguments Set For Challenges To Illinois’ Ban On Carry

May 9, 2012 by 7 Comments

The NRA’s challenge to the ban on any form of carry in the state of Illinois, Shepard et al v. Madigan, will come before the 7th Circuit Court of Appeals for oral arguments on Friday, June 8th in Chicago. The Illinois State Rifle Association is a party to this suit.

At the same time, the Court of Appeals will also hear the Second Amendment Foundation’s case, Moore et al v. Madigan. Illinois Carry, SAF, and a number of other individual plaintiffs are party to this suit.

A motion had been made to consolidate the cases by attorneys for the State of Illinois and was denied on April 26th. Judge Frank Esterbrook ordered:

IT IS ORDERED that the motions to consolidate are DENIED. Appellees do not need a formal order of consolidation in order to file one brief addressing two appeals. They may file one brief, or two, at their option.

IT IS FURTHER ORDERED that the motion for an extension of time is GRANTED, but only until May 9, 2012 (in both appeals). This should allow enough time to prepare a single brief covering the two cases. Appellees previously told the court that the two suits are functionally identical. There is accordingly no need for time beyond the 30-day extension already granted, and this one-week increment.

The court’s last regular sitting of the current term is June 8, 2012. If the court were to delay the appellees’ briefs until June 1 or June 11 (the alternate dates appellees propose), that would postpone oral argument until next September, an unnecessary delay. Appellees must file their brief (or briefs) in both cases by May 9, and appellants their reply briefs by May 23. That will permit oral argument the last week of May or the first full week of June.

The lead attorney for the plaintiff-appellants in the Shepard case is Charles Cooper of Cooper and Kirk. Mr. Cooper has been handling much of the NRA’s appeal work and formerly was an Assistant Attorney General in the Reagan Administration.

David Sigale, co-counsel in both the McDonald and Ezell cases, is listed as the counsel of record in the Moore case. However, I expect Alan Gura to present the oral arguments as there was a notation in the docket of his schedule and he is listed as an attorney in the case.

UPDATE: P.T. had a question below about the three judges who will hear the case and whether they had been announced. I asked David Sigale if he knew who they would be. His response is below:

John, my understanding is that the Judges get picked for the panel not long before the argument. In any event, the litigants only find out who is on the panel when they show up that morning.

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Shepard V. Madigan – A Loss In District Court

March 31, 2012 by 6 Comments

US District Court Judge William D. Stiehl granted the State of Illinois’s Motion to Dismiss yesterday in the NRA-ISRA challenge to Illinois carry laws. The case, Shepard v. Madigan, was brought in US District Court for the Southern District of Illinois. Judge Stiehl granted the state’s motion to “dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim”. At the same time he denied the plaintiffs’ motions.

The NRA has indicated that they will appeal the ruling:

“Late today, a federal district court in Illinois wrongly ruled that the Second Amendment does not protect a right to carry firearms for self-protection outside the home. The NRA funded this challenge to Illinois’ ban on citizens’ ability to carry firearms legally outside their homes and businesses for self-defense, and will also be supporting an immediate appeal to the Seventh Circuit U.S. Court of Appeals–and to the Supreme Court if necessary.

The decision in the case of Shepard v. Madigan misreads the Supreme Court’s Second Amendment decisions and will continue to deprive law-abiding Illinoisans of the right to protect themselves effectively against crime on the streets.  It also conflicts with a growing body of case law elsewhere in the country, where courts have increasingly recognized that the right to bear arms for self-defense doesn’t end at Americans’ front doors.

“The NRA’s legal efforts will not end until the right to carry firearms for self-defense is fully recognized throughout our land,” said NRA-ILA Executive Director Chris W. Cox.

Judge Stiehl found that intermediate scrutiny was the appropriate standard of scrutiny in this case. He then pointed to the 4th Circuit’s ruling in Masciandaro. However, unlike the judges in Woollard and Bateman, he read it differently, saying:

The defendants assert that the State of Illinois has significant governmental interests in protecting the safety of the public by restricting the availability and use of handguns in public. The Supreme Court has previously recognized that under intermediate scrutiny cases, the government’s interest need not be compelling. Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997). As the Fourth Circuit noted in United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011), “[l]oaded firearms are surely more dangerous than unloaded firearms, as they could fire accidentally or be fired before a potential victim has the opportunity to flee.” The State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm. This Court FINDS that the state has, therefore, established a substantial interest in the regulations at issue.

It seems to me that Judge Stiehl was grasping for straws in this decision. It will be interesting to see what the 7th Circuit makes of his logic. 

The full opinion can be found here.

UPDATE: Prof. Eugene Volokh of UCLA Law and the Volokh Conspiracy examined the decision yesterday. He offers the opinion that Judge Stiehl misreads the 7th Circuit’s Ezell opinion regarding intermediate scrutiny.

I’m not claiming that Ezell clearly selected “a more rigorous” standard than intermediate scrutiny for law-abiding-citizen Second Amendment claims — it may be that its selection of that standard is limited to restrictions that interfere with gun possession in the home. (The Ezell plaintiffs “claim[ed] that the range ban impermissibly burdens the core Second Amendment right to possess firearms at home for protection because the Ordinance conditions lawful possession on range training but makes it impossible to satisfy this condition anywhere in the city.”) But I am saying that Ezell did not select “intermediate scrutiny” as the general standard for law-abiding citizen Second Amendment claims outside the home, and the district court was mistaken in concluding that Ezell did so. Rather, the district court should have recognized that the issue had not been decided by the Seventh Circuit, and the court should have accepted the responsibility for itself making the choice, rather than asserting that the choice was made for it.

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Motion For Injunction Sought In NRA’s Illinois Case

July 11, 2011 by

I meant to post this on Friday but didn’t. A day after the Second Amendment Foundation filed a Motion for a Preliminary Injunction in their case against Illinois, Moore v. Madigan, the NRA filed a similar motion in their case against Illinois. Both of these motions came after the 7th Circuit Court of Appeals found against Chicago and ordered a preliminary injunction against the range ban in Ezell v. Chicago.

The Memorandum for the Motion for a Preliminary and/or Permanent Injunction can be found here.

NRA Files a Motion for an Immediate End to Illinois’ Ban on Right-to-Carry

Friday, July 08, 2011

Fairfax, Va. — The National Rifle Association (NRA) is filing a motion for an injunction asking the United States District Court for the Southern District of Illinois to immediately strike down Illinois’ complete and total ban on carrying firearms for self-defense outside the home or place of business.

This week, the Seventh Circuit U.S. Court of Appeals ruled that any violation of the Second Amendment constitutes irreparable harm – a factor needed to receive a preliminary injunction on NRA’s lawsuit challenging the constitutionality of the Illinois statute prohibiting carriage.

The NRA filed a lawsuit, Shepard v. Madigan, on May 13 in the United States District Court for the Southern District of Illinois. The lead plaintiff is church treasurer Mary Shepard; joining her is the Illinois State Rifle Association, the NRA’s state affiliate.

Because Illinois statutes prohibit carrying handguns, they infringe on the right of the people, including Mrs. Shepard, members of the ISRA and other law-abiding citizens to keep and bear arms as guaranteed by the Second and Fourteenth Amendments to the United States Constitution and are thus null and void.

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Mary Shepard – Victim Of A Thug And Chicago Politicians

May 14, 2011 by 9 Comments

Mary Shepard is the lead plaintiff in the lawsuit brought by the National Rifle Association and the Illinois State Rifle Association against the State of Illinois for denying Ms. Shepard the right to defend herself.

If there was ever a plaintiff who could make the case for needing to defend oneself with a firearm, it is Mary Shepard. Back in 2009 when she was 69 years old, she and 76 year old Leona Mount were the victims of a vicious beating attack. They were attacked by Willis Bates as he was burglarizing the Anna (IL) First Baptist Church where both ladies worked. The Associate Baptist Press gives this description of their injuries:

Arrest warrants claim that Bates repeatedly kicked the heads and bodies of Shepherd, the church treasurer, and Mount, a maintenance worker, before getting away with less than $600.

Both women were taken by ambulance to Union County Hospital in Anna and airlifted to St. Francis Medical Center in Cape Girardeau, Mo. Shepard remained there, while Mount was transferred to St. Louis University Hospital in St. Louis. Both women are expected to recover, a fact that church members are calling a miracle.

Shepard’s injuries included a skull fracture, concussion and a possible broken bone in her right cheek. She was moved from the trauma unit to the ICU for observation and later transferred to a regular room. She has since been released from the hospital and is recuperating at home.

Surgery was scheduled Oct. 8 for Mount to begin to repair a broken nose, numerous facial fractures, jaw fractures and a fractured palate. Medical staff at St. Louis University told family members the injuries were like nothing they had ever seen. Despite that, she reportedly suffered no damage to her brain or eyes.

The video above is a report from WSIL Channel 3 back in October 2009 announcing Bates’ arrest. Bates was given a 23 year sentence for two counts of attempted murder. He had previously served 7 years in Illinois prisons for residential burglary. Here is his Illinois Department of Corrections rap sheet including a current picture.

Even before this horrific beating, Mary Shepard, now aged 71, had obtained concealed carry permits from the states of Pennsylvania and Florida. According to IllinoisCarry, Ms. Shepard had taken five firearms training courses including Personal Protection Outside the Home. However, because Illinois law forbids concealed or open carry, she was unarmed when attacked by 6’4″, 240 lb. psychopath Willis Bates. Ms. Shepard discusses the attack, her injuries, the aftermath, and her firearms training which if she was allowed to carry for self-defense could have prevented these horrible injuries in an video made for IllinoisCarry.

The Cook County politicians who kept Mary Shepard defenseless in the face of the attack by Willis Bates should be forced to watch this video. Of course that is a futile hope but perhaps one day – whether by court order or by legislation – the good people of Illinois will be allowed to protect themselves in public with a firearm.

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Shepard v. Madigan: The NRA-ISRA Challenge To Ban On Carrying Firearms

May 13, 2011 by

The National Rifle Association and the Illinois State Rifle Association filed suit today on behalf of Mary Shepard challenging the State of Illinois’ ban on the carrying of firearms for self-defense. As I posted earlier, the Second Amendment Foundation filed suit yesterday in Illinois with a similar challenge. Fortunately, the NRA suit is filed in U.S. District Court for the Southern District of Illinois while the SAF suit was filed in the Centeral District of Illinois. Therefore, the cases cannot be combined.

The release from the NRA-ILA announcing the case is below.

Friday, May 13, 2011

Fairfax, Va. — The National Rifle Association is funding and supporting a lawsuit that challenges the constitutionality of Illinois’ complete and total ban on carrying firearms for self-defense outside the home. The case, filed today in the United States District Court for the Southern District of Illinois, is Shepard v. Madigan. The lead plaintiff is church treasurer Mary Shepard; joining her is the Illinois State Rifle Association, the NRA’s state affiliate.

Mary Shepard is an Illinois resident and a trained gun owner with no criminal record, who is licensed to carry a concealed handgun in two other states. Because Illinois remains the only state that completely prohibits all law-abiding citizens from carrying firearms for self-defense outside the home, Mary Shepard also became a crime victim. While working as the treasurer of her church, Mrs. Shepard and an 83-year-old co-worker were viciously attacked and beaten by a six-foot-three-inch, 245-pound man with a violent past and a criminal record. Mrs. Shepard and her co-worker were lucky to survive, as each of them suffered major injuries to the head, neck and upper body. Mrs. Shepard’s injuries required extensive surgery and physical therapy.

“Mary Shepard isn’t just a victim of the violent criminal who attacked her,” said Chris W. Cox, executive director of NRA’s Institute for Legislative Action. “She is also a victim of anti self-defense activists in the Illinois legislature who have consistently refused to recognize that good people have the right to protect themselves when they go about their everyday business. We’re pleased that the legislature has come closer this year than ever before to changing the law, but close isn’t good enough for Mary Shepard and the thousands of other Illinois residents who are prohibited by statute from defending themselves outside the home.”

Because Illinois statutes prohibit the right to keep and bear arms and the ability to carry handguns in Illinois, they infringe on the right of the people, including Mrs. Shepard, members of the ISRA and other law-abiding citizens to keep and bear arms as guaranteed by the Second and Fourteenth Amendments to the United States Constitution and are thus null and void.

Cox concluded: “In its historic Heller and McDonald decisions, the U.S. Supreme Court made clear that the Second Amendment protects a fundamental, individual right to keep and bear arms. Mary Shepard’s story highlights the need for law-abiding citizens to be able to fully exercise their Second Amendment rights. Whether through the legislature or through the courts, we won’t rest until that happens.”